The oil and gas industry must comply with strict federal environmental laws

Fact:

Congress has exempted the oil and gas industry from many major environmental provisions that govern other industries nationwide

For many years, the Clean Air Act, the Clean Water Act, and the Safe Drinking Water Act have provided regulatory control of toxic pollution and protected human health from serious environmental hazards. Americans have come to expect that the federal government will take action to keep our air safe to breathe and our water safe to drink. But due to the influence of millions of dollars of industry lobbying and Dick Cheney’s 2001 Energy Task Force, special exemptions from these laws were passed by Congress in the 2005 Energy Policy Act.

The “Halliburton Loophole,” (a term coined to reflect former Vice President’s position as CEO of that company), has opened the door to domestic drilling on an unprecedented scale—with little federal oversight. While the Sierra Club is fighting to remove these federal exemptions, we are also working to protect and bolster what little oversight local governments have over this industry.

Shane Davis, Sierra Club Rocky Mountain Chapter’s Oil & Gas Campaign Information & Research Manager comments, “Consider that up to 52 well bores can be drilled for every well pad, and that each of these bores has a condensate tank that produces roughly two tons of hydrocarbon emissions per year. A device called the 'separator' releases about six cubic feet per minute and the volatile organic combustor flare also burns off excess product and other chemicals. All these emissions are released from a single well bore. Imagine 52 or more well bores clustered together in a small neighborhood vicinity, as they are near my home in Firestone, CO and other communities. This is clearly a major source of toxic air pollution. But the Clean Air Act now categorizes oil and gas operations as a 'minor source' which makes the production side of this entire industry exempt from the Clean Air Act.

Some may wonder why, in recent years, so many people are up in arms about the oil and gas industry’s practice of hydraulic fracturing, or “fracking.” The documentaries GASLAND and SPLIT ESTATE have galvanized opposition by demonstrating the adverse impacts the industry is imposing on our quality of life and environmental health across the U.S. With specific exemptions from seven distinct Federal environmental protection laws, the industry is on roll, drilling new wells at breakneck speed. Citizens are in shock, with the essential elements of life—clean air, water, and soils—under threat by an exponential increase in the numbers, density, and distribution of wells. Each of these wells is injected with a pressurized mixture of water, chemicals, sand, and other materials, only part of which are ever recovered. The remainder remains downhole. The recovered industrial waste is generally disposed of deep underground in Class II injection wells, where it, too, remains indefinitely. Each hydraulic fracture phase requires millions of gallons of water, which companies often purchase from municipal drinking water sources. This water is permanently removed from the hydrologic cycle, and is rendered non-potable, toxic and non-useable virtually forever. This practice is rampant in semi-arid Colorado, where dwindling headwaters from the Continental Divide must also meet the needs of thirsty states downstream.

“Due to federal exemptions, drilling occurs in close proximity to residential zones, elementary schools, playgrounds, hospitals, and public places; and citizens have no recourse,” said Davis. “Industry can set up shop within 350 feet of your home, and there are waivers available that allow them to drill even closer to your home to access a pre-existing well. Furthermore, our recent RMC Sierra Club analysis of 615 reported toxic spills, which occurred at drilling sites in Weld County between 2008 and 2012,found that groundwater contamination was reported in 44% of these cases. But there are few repercussions for the industry, due to the federal exemptions. The Colorado Oil and Gas Conservation Commission (COGCC) is now responsible for regulation of oil and gas drilling activities in our state. Clearly, COGCC rules are not strong enough to prevent soil, ground and surface water contamination and numerous other adverse impacts to the environment and human health.”

The state of Colorado has just 17 oil and gas inspectors to monitor 47,000 active oil and gas wells, and roughly 82,000 abandoned wells. The industry in Colorado is left to self-report spills and other mishaps, because there is no authoritative oversight to enforce disclosure of on-site violations. State regulators have failed to abide by their own mission statement:

The mission of the Colorado Oil and Gas Conservation Commission (COGCC) is to foster theresponsible development of Colorado's oil and gas natural resources.

Responsible development results in:

The efficient exploration and production of oil and gas resources in a manner consistent with the protection of public health, safety and welfare

The prevention of waste

The protection of mineral owners' correlative rights

The prevention and mitigation of adverse environmental impacts

The Colorado Supreme Court has ruled that local governments are prohibited from superseding state oil and gas regulations, and the Colorado Attorney General has threatened to sue communities that dare to assert purview over oil and gas drilling practices on behalf of their residents.

Even before the “Halliburton Loophole”, Congress amended environmental laws in 1988, providing special exemptions for the oil and gas industry, including two laws concerning hazardous waste. Because of these exemptions, radioactive materials added to drilling mud, and naturally occurring radioactive materials (NORM) extracted along with oil and natural gas, are not classified as hazardous waste, and are not monitored or controlled by the federal government.

It would be a very different world if legal exemptions for the industry were revoked. Energy developers’ profit margins would be reduced by the obligation to spend more money and time controlling toxic pollution, and by requirements to prepare environmental impact statements and appropriate waste management plans. It is also likely that drilling would be prohibited near communities and other places designated as “areas of special concern”. Putting oil and gas on the same playing field as other industries in the US would likely increase economic incentives to develop cleaner and more sustainable fuel sources.

Two important pieces of legislation have been proposed in Congress that would rescind some of the exemptions, and provide a regulatory framework addressing the environmental impacts of the drilling boom. The Fracturing Responsibility and Awareness of Chemicals Act, or FRAC Act, was first proposed by Rep. Diana DeGette (D-CO) and Rep. Jared Polis (D-CO) in 2009, and was re-introduced into Congress on March 15th, 2011. The FRAC Act amends the Safe Drinking Water Act to repeal the exemption from restrictions on underground injection of fracking waste. And, in 2011, Rep. Jared Polis (D-CO), Maurice Hinchey (D-NY), and Rush Holt (D-NJ) introduced the Bringing Reductions to Energy’s Airborne Toxic Health Effects Act, or BREATHE Act, which would rescind two key industry exemptions in the Clean Air Act, thereby requiring the use of better air pollution control technology, and placing the neurotoxin hydrogen sulfide back on the list of hazardous air pollutants.

“The day I started getting numerous phone calls from people in my community concerned about fracking operations in close proximity to their homes, I started to research the facts,” said Davis. “I soon realized that we were living in the epicenter of the fracking industry. I have about 75 active oil and gas wells within a one mile radius of my home in Firestone, Colorado. The industry has never scientifically proven that fracking practices do not endanger the environment and human health. In fact, it is with the federal exemptions that they need not worry about any adverse impacts and can drill with impunity. I consider this hydraulic fracturing invasion to be one of the single greatest environmental catastrophes of our time. We must educate the people of Colorado and America about the real adverse impacts to our air, water, soils, real estate, and quality of life this heavy industry is imposing on us.”

Those who have the privilege to know, have a duty to act – Albert Einstein